Features for June 2012

Welcome to the June 2012 edition of the Appellate Lawyer --
the monthly newsletter of the HBA Appellate Section.

Chief Justice Tom Gray: Whatever Your Hands Find to Do, Do with All Your Might by Justice Wanda Fowler (Ret.)

Justice Bill Boyce, 14th Court of Appeals, describes his R-E-S-P-E-C-T for judges who artfully use song lyrics in judicial opinions.

DID YOU KNOW . . . ?
by JoAnn Storey

by Derek D. Bauman
Introduction: An explanation of the new column and topics to be addressed in the future
Caselaw research outside of Westlaw and LexisNexis: A look at a couple of free resources for researching caselaw.

Chief Justice Tom Gray: Whatever Your Hands Find to Do, Do with All Your Might

by Hon. Wanda McKee Fowler (Ret.), Wright & Close, LLP

“Whatever your hands find to do, do with all your might.” Ecclesiastes 9:10. That bit of wisdom perfectly sums up Chief Justice Tom Gray’s approach to life. His life is an example of focus, work, and perseverance. He says his “public school teachers instilled in him and his siblings the belief that with hard work you can be what you want.”

From the time he was a kid in Conroe, Texas, he was working on neighbors’ yards, sacking groceries, and working for a “lady down the street who had a landscaping business.” By the time he was 14, he spent all of his weekends at his family’s farm in Madisonville, Texas where they grew corn. As the youngest, he was responsible for the “down row,” which had been knocked down by the tractor and had to be picked up off the ground.

Even becoming a judge was work for him. Although he knew he wanted to be a lawyer before high school and thought about being a judge in high school, he didn’t take a direct route to achieve those goals. Instead, he went into accounting because “it was a working man’s field.”

Fate had a little to do with it as well. He did not realize until the summer before his senior year in college that he had to take the LSAT. He took it and applied only to Baylor Law School because it was the only law school he knew. The same day he received his rejection letter from Baylor Law School, his auditing professor “pitched” grad school to him and offered him a graduate teaching position. He accepted on the spot. He began grad school at Sam Houston State University, where he had obtained his BBA, and then transferred to A&M, where he graduated with a Masters in Business Administration in accounting. With his graduate degree under his belt, Justice Gray moved to Houston, joining what was then one of the “Big 8” accounting firms, Deloitte, Haskins & Sells. His work ethic led him to be promoted to a senior accountant after only his second year—a feat accomplished at that point by only one other person. He loved his work at Deloitte Haskins & Sells, but after three years, he decided he needed to return to his original plan of becoming a lawyer.

This time he came knocking on its door, Baylor University Law School was glad to have him as a student. At Baylor another professor had a major impact on the course of his life. A law professor had a friend in Corsicana who needed help with probate and estate planning work. Knowing of Judge Gray’s accounting background, the professor suggested Justice Gray, who took the job. Once again fate intervened. Shortly after he arrived at the firm a client contacted the firm about estate litigation. This began Justice Gray’s entrĂ©e into litigation.

He found the work interesting, but remembering his goal to become a judge, Justice Gray knew he would have a better shot at becoming a judge if he went to a larger firm in a metropolis. Soon he joined Fulbright and Jaworski in Dallas. He says his real asset at Fulbright was in seeing the opposing side’s point of view. He became part of a team of lawyers called “the jerks,” because their function was to argue the other side’s case and thereby help prepare the trial team for trial. He became the defacto appellate lawyer for the Dallas office before it had an appellate section.

Even though he switched his work to Dallas, Justice Gray continued to live in Corsicana and kept his contacts with Waco. One day in February of 1996 on his way to work in Dallas he heard on the radio that the Chief Justice of the Waco Court of Appeals had died. He felt that “someone was telling him he needed to apply for the job.” He applied, but as with his first try at law school, he was unsuccessful. Still this unsuccessful bid for an appointment ultimately paved his way to the court, because now, others knew he was interested in a spot on the court. When Associate Justice Cummins decided not to run again he told Justice Gray. Immediately Justice Gray focused on that spot and began running for it —not without an additional snag, though. He learned that he could not stay at his firm while running in a contested race. So he left Fulbright and for a year was a municipal judge in Rice, Texas.

With the general election in November of 1998, Justice Gray realized his long-held goal to become a judge. In 2003 he was appointed to the Texas Supreme Court advisory committee on court procedure and administration, and later that year Governor Rick Perry appointed him Chief Justice of the Tenth Court of Appeals.

Chief Justice Gray has the following to say about bench briefs, oral argument, and other topics:

  • Bench Exhibits – Typically bench briefs and exhibits are not very helpful; they usually are given to the court at the beginning of an argument, which is too late. As Justice Gray says, “If it is a helpful exhibit, I want it filed with the brief.” The most useful exhibits have been surveys or maps in boundary disputes or oil and gas pooling disputes, family trees in probate matters, and timelines.
  • Oral Arguments – Waco hears approximately 400 cases a year; of that number only about 5%—20 cases—will be argued. Justice Gray says lawyers are most effective at argument when they admit their case’s weaknesses and discuss their case from a new perspective. Lawyers are least effective when they attempt to read documents or their argument to the court.
  • Cases of First Impression – When deciding cases of first impression Justice Gray will look for the closest analogous statutes or cases. He also will look at law from other states to help interpret a new statute, but does so only if the other state’s statute is the same as the Texas statute he is interpreting.
  • Judicial Philosophy – Justice Gray’s judicial philosophy is “conservative.” This is not necessarily the “conservative” in the sense of modern political rhetoric, but rather in narrowing the point to be decided. He prefers to answer specific questions and believes that judges should not engage in broad, “sweeping” legal statements. He believes the law should move forward in “baby steps.”

  • When asked what he likes most about being an appellate judge, Justice Gray said he enjoys “taking a very difficult case and walking a reader through it so they can understand it.”

    Ever true to his motto, Justice Gray is not a man of leisure. For a number of years his wife had an antique shop; he was her handyman. For him life continues “to be about work.” Now, when he is not on the bench he can be found fixing broken things such as furniture or equipment or “working on court stuff.”

    Rewrite This Sentence

    by Justice Bill Boyce, Fourteenth Court of Appeals

    So here you are, Chief Justice of the United States Supreme Court and all, looking for a way to dissent memorably in a case not unlike many the Court decides. That is to say, a case addressing a technical legal issue that is both (A) important, and (B) unsurpassingly dull unless you happen to make a living by litigating technicalities of this nature.

    How technical? How dull? Try this on for size: Do the assignees of 1,400 payphone operators suing long-distance carriers under the Communications Act seeking to recover FCC-mandated dial-around compensation for coinless payphone calls have Article III standing, even when these assignees have promised to remit the proceeds of the litigation to the assignors?

    In case you’re wondering, Justice Breyer and four other justices concluded that the answer to this question is “yes.” Sprint Commc’ns Co., L.P. v. APCC Servs., Inc., 554 U.S. 269, 285 (2008). “Lawsuits by assignees, including assignees for collection only, are ‘cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process.’” Id. (quoting Vermont Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 777–78 (2000)).

    The merits of Chief Justice Roberts’s dissent in Sprint Communications are less important for present purposes than the technique he uses to make his point in a case that easily could induce REM sleep.

    His technique, in two words: Song lyrics.

    Said the Chief Justice: “The absence of any right to the substantive recovery means that respondents cannot benefit from the judgment they seek and thus lack Article III standing. ‘When you got nothing, you got nothing to lose.’ Bob Dylan, Like a Rolling Stone, on Highway 61 Revisited (Columbia Records 1965).” Id. at 301 (Roberts, C.J., dissenting).

    This technique may be novel in the United States Supreme Court, but it is old hat in the Texas Supreme Court. Especially, for some reason, in dissents in mandamus cases. See In re McAllen Med. Ctr., 275 S.W.3d 458, 470 (Tex. 2008) (orig. proceeding) (Wainwright, J., dissenting) (quoting A Whole New World by Brad Kane); In re Allstate County Mut. Ins. Co., 85 S.W.3d 193, 200 (Tex. 2002) (orig. proceeding) (Baker, J., dissenting) (quoting Yesterday by John Lennon and Paul McCartney); Walker v. Packer, 827 S.W.2d 833, 846 (Tex. 1992) (orig. proceeding) (Doggett, J., dissenting) (quoting God Bless the Child by Arthur Herzog, Jr. and Billie Holliday).

    I myself have never worked up the nerve to include a song lyric in an opinion. Or, during my time practicing law, in a brief. This reluctance has less to do with any philosophical position on the use of song lyrics in legal writing, and more to do with concerns about my own dexterity in attempting to weave pop culture references into otherwise solemn legal analysis.

    Handled skillfully, song lyrics can have a powerful effect in opinion writing. Handled clumsily, lyrics can create an unnecessary distraction. Sort of like an impulsively chosen tattoo in a prominent location.

    My concern is underscored by the ephemeral nature of some briefly popular songs. Lyrics from Dylan, Lennon, McCartney and Disney movies probably are pretty safe bets in terms of shelf life. Other choices run a high risk of going stale. Like the songs of my youth, for instance. Mercifully, much of the music I listened to in the late 1970s and early 1980s no longer gets significant airtime beyond specialty stations on Sirius. (Until, of course, it is recycled on Glee, which ensures that my youngest daughter will play it on the laptop until I break out in hives.)

    Then too there is the prospect of unnecessary arguments about the accuracy of quotations from lyrics. Even Chief Justice Roberts’s selection from Dylan is not beyond question; according to some websites, the correct lyric is this: “When you ain’t got nothin’, you got nothin’ to lose.” Motions for rehearing are plentiful enough without getting into a Google-fueled dispute about the most accurate rendition of a lyric.

    I am unlikely to incorporate song lyrics into my opinions any time soon. But for opinion drafters and brief writers who are so inclined, I salute your efforts in the words of philosopher and legal scholar Robert Hunter: “Keep truckin’ like the doodah man.”

    Have your own rewrite suggestion that would rock you like a hurricane? Send it to: submissions@hbaappellatelawyer.org

    Did You Know . . . ?

    Merely providing a draft judgment to conform to what the court had announced would be its judgment does not result in waiver of appeal of the judgment. John Masek Corp. v. Davis, 848 S.W.2d 170, 174–75 (Tex. App. Houston [1st Dist.] 1992, writ denied); see also In re Bahn, 13 S.W.3d 865, 875 (Tex. App. Fort Worth 2000, orig. proceeding) (“A party should not be estopped from challenging a court’s order when the party provides to the court a proposed order following what it believes was the court’s ruling at the hearing, and the court signs it.”); Glattly v Air Starter Compenents, Inc., 332 S.W.3d 620, 636–37 (Tex. App. Houston [1st Dist.] 2010, pet denied) (holding party did not waive right to complain of judgment where record indicated that party’s proposed judgment was made after several hearings on post-trial motions and was intended to conform to what the trial court had announced as its judgment at those hearings). However, if a party files a motion for judgment on the verdict and does not indicate in some manner that it disagrees with the substance of the verdict, then that party cannot challenge on appeal the judgment it requested. First Nat’l Bank v. Fojtik, 775 S.W.2d 632, 633 (Tex. 1989); Litton Indus. Prod., Inc. v. Gammage, 668 S.W.2d 319, 321–22 (Tex. 1984).

    -- JoAnn Storey

    Have your own piece of procedural arcanum suggestion? Send it to: submissions@hbaappellatelawyer.org

    AppellaTech: Intro

    Welcome to AppellaTech. My goal is to make this a regular article for the newsletter about technology (mostly resources available online) that can be useful to the appellate practitioner.

    To be honest, however, I would not put myself that much above average on the scale of being technologically (and internet) savvy.  To that end, I am hoping to beg, borrow, and steal as much as I can from our readership. At the end of every article, I will identify the topic for the next publication. If you have any ideas, I strenuously plead with you to share them with me. It is far better to receive twenty suggestions on an topic I already know about than to not get any emails on the topic I don't know about.

    In addition, if there is a general topic you would like to see addressed in this column, please notify me as well. I may not get to it immediately, but I will strive to address each of the areas I receive inquiries about.

    To give you a better idea of the scope of this column, here are some of the areas of interest I hope to address in the articles to come.
    • Other blogs that may be of use to the appellate practitioner.
    • Other online resources
    • Smart phone apps
    • Tricks to Microsoft Word that you might not be aware of
    • eFiling and other matters relating to Texas appellate courts' websites.
    I am also more than willing to expand the scope of this column if you have other areas of interest that are reasonably related to technological resources for appellate practitioners.

    This leaves, then, the matter of how to reach me. I can be contacted the same way all of the article authors for this newsletter can be reached. Please send any emails to submissions@hbaappellatelawyer.org.

    I hope you find this to be a very useful column.

    Derek Bauman
    Staff attorney, First Court of Appeals

    AppellaTech: Caselaw research outside of Westlaw and LexisNexis

    Westlaw and LexisNexis are invaluable (or, perhaps, entirely valuable and billable to the client) resources for researching caselaw. Nothing I have encountered so far has come to rival their value. But there are times when I know the case I'm looking for and all I want to do is pull it up quickly, either to confirm something or to quickly copy and paste from it.  When I was in private practice, I always felt bad for the client that they would get billed for such a small matter.

    For those situations, there are at least two completely adequate, completely free alternatives to Westlaw and LexisNexis.  The first, I expect most of the readers of this newsletter already know about: CaseMaker, available through the TexasBarCLE website.  The second, I expect to be introducing for the first time to a number of people: Google Scholar.


    If you've ever visited the Texas BarCLE website, you've seen the widget for CaseMaker.

    If you know the citation of the case you want to look up, you can enter it in and instantly get the case.  If you actually want to do a search query, you can do that as well.  Looking at the search tips, it seems that CaseMaker is attempting to be more sophisticated than just a general search.  I have not used this resource enough to be able to discuss its usefulness.  If you have experience with using search terms in CaseMaker, please let me know what your thoughts are, and I will try follow up on this in a future article.

    Though I have only used this for caselaw searches, it is not limited to this purpose. Under their Texas Library, you can also search the administrative code, the Texas constitution, Texas statutes, session laws, and a handful of municipal codes, including Houston's.  The federal library includes a number of other resources as well.  You are able to search caselaw, statutes, and other materials for the other 49 states as well.  In this case, CaseMaker could be a useful supplement if your Westlaw or LexisNexis subscription is more limited.

    As the image above indicates, it is available only to Texas State Bar members and does require you to log in.

         Google Scholar

    Right now, Google Scholar is not much competition for Westlaw or LexisNexis since Google Scholar's search queries appear to lack Westlaw's or LexisNexis's more sophisticated search capabilities.  But I do wonder if that will always be the case.

    For the moment, though, I use Google Scholar frequently to pull up a case I have already found that I want to copy a quote from.

    To pull up a case, first go down to the bottom of the page and make sure Texas is selected as your source.

    Then go up to the top, and put in your search query and put in the case citation.

    A word of warning: sometimes I find that periods must be used in "S.W.3d" and sometime I find that they cannot.  Google Scholar is not very sophisticated or consistent in this way.  If you can't seem to find your case using the proper citation, try omitting the periods in "S.W.3d."

    Google Scholar places the page number both on the left and inline with the text.  I find this to be a useful feature when you want to quickly find the page you're looking for.

    Both of these websites offer much more than I'm covering here today.  If you are looking for more ways to avoid the cost of Westlaw or LexisNexis, you should look into these more.  And if you do explore either of them more, please let me know what you think and what you find.

    Next column: I plan on reviewing some of the online resources available for Texas legislative materials.  Clearly the Texas Legislature's own website will feature prominently.  If you know of any other online resources that fit within that topic, however, please let me know and I will work it into my column.

    Derek Bauman
    Staff attorney, First Court of Appeals

    Comments, questions, and useful information is always welcome (and desperately sought). Please send them to: submissions@hbaappellatelawyer.org